It would seem that a lot of people may have had their calls recorded in light of the leaked FISA order. What made the Clapper case so difficult for purposes of standing was that no one could show they were actually recorded. It was all speculative.
This order would seem to show that Verizon customers had their calls turned over on a daily basis. So wouldn’t there be standing?
How soon till the ACLU or some other group starts rounding up affidavits of Verizon customers who placed calls during this period, and runs into district court. I have no idea what the merits are, but standing should be satisfied.
I will wait for Justice Scalia’s “panopticon” dissent in this case.
Update: Steve Vladeck comments on Clapper:
I realize that, for many, this order will seem either unsurprising, unalarming, or both. Such is the state of the world–and of the authorities under which the government operates on an increasingly routine basis. But contrast that mentality with the skepticism at the heart of Justice Alito’s opinion for the 5-4 Supreme Court majority in February’s Clapper v. Amnesty International decision, which, in rejecting standing to challenge (admittedly different) FISA-related authorities, dismissed the plaintiffs’ allegations that their communications might be intercepted as purely “speculative.”
Justice Alito’s specific analysis aside, it’s the mindset that I just don’t get. Reasonable people can certainly disagree about the normative desirability (and, I dare say, legality) of the degree of governmental surveillance that is now underway. But can reasonable people really continue to disagree that this is the world in which we’re living?
Update 2: ACLU notes that they will pursue more information in their pending FOIA lawsuit:
This disclosure is likely to have significant implications for the ACLU’s pending FOIA lawsuit. The Department of Justice is scheduled to file a brief in that case on June 13; the ACLU’s response is due on June 28, and oral argument is scheduled for July 11 in the Southern District of New York.
More information on the ACLU’s FOIA lawsuit requesting information on Patriot Act Section 215 is at: